Art or Obscenity? Unusual Case Draws Controversy

Feb. 1, 2008

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The Web site, Red Rose, which has since been taken down, was intended to be "a safe place for cathartic writing – for people to express themselves and use their own imagery … not to have pictures to potentially excite or be suggestive to readers," Fletcher said in the affidavit. Through her lawyers, she declined to be interviewed for this story.

"If she hadn't been writing these stories, she probably wouldn't be alive today," said Jerome Mooney, one of Fletcher's attorneys. Mooney and Fletcher's affidavit say she is a recluse who is afraid of other people and rarely leaves the house. She has avoided going to court for hearings.

"I don't think she's even in posture where she can imagine what it would be like" to go to prison, Mooney said. "She has difficulty leaving her own home. I can't imagine what would happen if she ended up in prison. I suspect it would be devastating. I don't think she'd survive it."

Her case began when the FBI received a complaint of suspicious activity from PayPal, according to a search warrant. Fletcher admitted to the FBI that she had about 29 subscribers, who paid $10 a month for access to the site.

In court papers, the government argued that the fact that Fletcher charged for access to the site made it illegal. Mooney said Fletcher charged subscribers to pay for the cost of running the site and to keep children from accessing it. This week, a judge refused to suppress Fletcher's statements to the FBI. She is expected to go to trial later this year.

Much pornography may meet the technical definition of obscenity. But many prosecutors, faced with the immensity of potentially obscene material on the Internet, tend to focus on child pornography and abuse, said Bowers and Joseph DeMarco, a former federal prosecutor in New York. Those cases are more likely to lead to other charges; pornography that features torture or rape is often made in the third world and may involve sexual slavery, DeMarco said.

In 2006, there were about 2,500 federal child pornography prosecutions, according to the Bureau of Justice Statistics. Though both former attorneys general John Ashcroft and Alberto Gonzales said they planned to make obscenity a priority, there have been comparatively few obscenity cases brought separately from allegations of child pornography or sexual abuse.

"The idea that you can arrest someone for looking at dirty pictures seems antiquated today," Wu said. "It's close to being a dead law."

Cases attacking words alone have not fared well in the appellate courts. State obscenity charges against the rap group 2 Live Crew for their explicit lyrics were thrown out. An Ohio man pleaded guilty to state obscenity charges in 2005 for diary entries that described fantasies of sexually abusing children but was granted a new trial after a court ruled that his lawyers were ineffective because they advised him not to pursue a first amendment defense.

Though Fletcher's lawyers argue that it should never be constitutional to prosecute text-only cases, her trial will probably focus on whether her stories have literary or scientific merit. Her lawyers cite episodes of the television show South Park and Norman Mailer's novel The Castle and the Forest, which describes sex between a teenage boy and an older man, as examples of socially acceptable explicit content.